9911796707
TMI Blog2021 (9) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ier known as Shri Ramrupai Balaji Steels Ltd. The Appellant in reply to the show cause notice has categorically stated that the present Appellant had taken over this unit only w.e.f. 23-07-2007. Upto that point there was only one head office and one manufacturing unit. So there is no justification to deny the Cenvat credit up to the said date. Even subsequent to 23-07-2007 there is neither any allegation in the show cause notice nor any finding in the Order-in-Original that the Cenvat credit on input services was utilized in more than one unit. CENVAT credit - bank advices - auxiliary insurance services - HELD THAT:- The Chartered Accountant in the certificates has certified that the said banking financial services as well as auxiliary insurance services were received and used by the Appellant. He has also certified that the Cenvat credit on such services had been availed only once as shown in their records. Despite the fact that the above Chartered Accountant s certificates are on record, the Commissioner has not rebutted or controvered the veracity of the same. Therefore, the case made out by the Department lacks sufficient reasons to deny the cenvat credit on input service in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant willfully with the intent to evade payment of duty demandable and recoverable from them along with interest invoking the extended period of limitation in terms of the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944 along with imposition of penalty under Rule 15 Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. 3. The Ld. Commissioner vide the impugned Order has allowed the credit of ₹ 57,76,485/- on the ground that certain bills as mentioned in the chart were in the name of the factory address at Banskopa, Durgapur. According to him the show cause notice did not mention any other anomaly except the fact that credit had been availed on the basis of photocopy of bills and that credit had not been distributed through input service distributor challans. He allowed the credit by holding that when service providers raised bills for input service to the manufacturing unit directly, then there was no bar to avail that credit on the basis of original copy of the bills of input service providers. However, he disallowed the Cenvat credit of service tax to the tune of ₹ 3,53,87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were missing on which they had submitted a statement as Annexure G to the show cause notice. However, they had submitted two certificates of Chartered Accountants dated 24-08-2010 and 25-08-2010 respectively which are placed at pages 84 to 86 and 87-88 of the appeal memo. The Chartered Accountant in both the certificates had certified that the said banking and financial services as well as auxiliary insurance services were received and used by the company in the activities relating to its business. It was further certified that the cenvat credit in respect of bank advices and auxiliary insurance services had been availed once only on the date of cenvat credit shown in their records. The Chartered Accountant in the respective certificates had also given the date of taking of credit along with the document number and date. According to the learned Advocate there is no rebuttal of this factual position by the Commissioner in the impugned Order. 5. In support of his various submissions, the Ld. Advocate has relied upon the following judgments:- (i) Commissioner of Central Excise Vs. Dashion Ltd reported in 2016 (41) STR 884 (Guj.). (ii) Commissioner of Customs and Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has imposed penalty of ₹ 2,000/- under Rule 15(3) of Cenvat Credit Rules, 2004. Had it been a case of willful mis-statement or suppression of facts then the Commissioner would have imposed equal amount of penalty as provided under Section 11AC of the Central Excise Act which was invoked in the show cause notice or under Rule 15(4) of Cenvat Credit Rules, 2004, which provides imposition of hundred percent of the credit availed in terms of provision of Section 78 of the Finance Act. However the Commissioner chose to impose penalty under Rule 15(3) of Cenvat Credit Rules, 2004 which means there was no willful mis-statement or suppression of facts. According to him though in the show cause notice proviso to Section 11A was invoked along with the proposal for imposition of penalty under Section 11AC of the Act but the Commissioner in the Order has not imposed any penalty under Section 11AC of the Act as he did not find it a fit case for imposing penalty equal to the duty. Therefore, the finding of the Commissioner that extended period of limitation was invokable in the present case is legally not sustainable. 6. The learned A.R. for the Revenue, has reiterated the findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s upon them to have proved the said fact with concrete evidence. No such exercise was ever conducted by the department. Now the question which remained for consideration is that whether the Cenvat credit on input services can be denied to the Appellant merely on the ground that the head office was not registered as input service distributor as required under Rule 9 of the Cenvat Credit Rules, 2004 for distribution of credit on the documents in the name of the head office. This question has been answered by the various judgments of High Courts. The first judgment relied upon by the Ld. Advocate is the case of Commissioner of Central Excise Vs. Dashion Ltd reported in 2016 (41) STR 884 (Guj.) wherein the Hon'ble Gujrat High Court has held in clear terms that there is nothing in the statutory rules to disentitle an unregistered input service distributor from availing Cenvat credit. It has further been held that non-registration of the unit as input service distributor is only a procedural irregularity for which the Cenvat credit cannot be denied. It has been held that when the assessee is maintaining full records of credit received and distributed which was duly verified by the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only once as shown in their records. Despite the fact that the above Chartered Accountant's certificates are on record, the Commissioner has not rebutted or controvered the veracity of the same. Therefore, we hold that the case made out by the Department lacks sufficient reasons to deny the cenvat credit on input service in respect of banking & financial services and auxiliary insurance services. 9. On the issue whether the extended period of limitation is applicable to the facts of the case, we find that though the show cause notice was issued under extended period of limitation where there was a proposal to impose penalty on the Appellant of ₹ 2,000/- only in terms of Rule 15(3) of Cenvat Credit Rules, 2004 read with Section 11AC of the Act. We find that the Commissioner has only imposed penalty on the appellant under Rule 15(3) of Cenvat Credit Rules, 2004. We agree with the submissions of the Advocate that having not imposed penalty either under Section 11AC of the Central Excise Act which was duly invoked in the show cause notice or under Rule 15(4) of Cenvat Credit Rules, 2004, the Commissioner has impliedly accepted that it was not a case of willful mis-statement or s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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